On Friday, July 22, I was privileged to
attend the investiture of Judge David McKeague to the bench of the 6th U.S.
District Court of Appeals. Held in a small theater in Michigan State
University’s Wharton Center, the ceremony was attended by more than 250 of
McKeague’s family members, judicial acquaintances and friends.

In addition to the court clerk’s formal reading of the
commission from President Bush and the administration of the judicial oath,
McKeague and three others made short speeches. Though the Senate delayed his
confirmation for almost four years, McKeague professed admiration for our system
of nominee confirmation, saying that when he was asked if he hated politics, his standard answer was that it was not politics he had a problem with, but
politicians.

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McKeague considers the current viciousness of the Senate
confirmation process detrimental to the long-term health of our judicial system.
Because of the scrutiny and personal attacks under which recent nominees can
find themselves, the cost of putting one’s name forth for possible nomination
has increased exponentially. McKeague posits that the result is fewer people
willing to accept nomination, and that those few are from one of three groups: a
select set of sitting judges who have already survived the process, law
professors who are difficult to attack because they have not published many
articles, and politicians who are used to being beat up and scrutinized during
campaigns. As a result, he says, justices with trial court experience — the very
justices who have experience valuable to the higher courts — are increasingly
scarce in the upper levels of the judiciary.

Why is this? Why does the pool of possible judicial
appointees exclude many talented and knowledgeable individuals who are no longer
willing to bear the increased personal and professional cost of appointment?

The answer is ultimately economic. As the cost of something
— anything — increases while the gross value remains constant, the net potential
gain decreases. And when the net potential gain decreases, the relative value of
alternatives increases.

Thus, as judicial confirmations become more difficult (and
less assured), an increasing number of people value what was once their
second-best alternative more highly than accepting a federal judicial
appointment. As the cost imposed by the politicians on the confirmation process
increases, more and more good potential judges, many of whom are
well-compensated in the marketplace, will be unwilling to accept a nomination
even to lower courts. They will recognize that any movement to a higher bench
will be costly indeed.

If Justice McKeague’s three groups — or any other easily
confirmed groups — dominate our federal judicial structure, it will not be
caused by any special desire or diabolical scheme, but because of their
inherently lower cost of confirmation. As things stand right now, McKeague is
one of only two judges on the 6th U.S. District Court of Appeals with trial
court experience.

Yet this possible loss of courtroom experience is not the
true harm of increased confirmation costs. The true harm is that each increase
in cost removes another layer of men and women who have proved their worth in
the marketplace from the pool of those willing to accept nomination.

Our system is not broken, but it has been misused. For all
the difficulties, our system works. The Senate’s check on the president’s
appointment of federal judges is a proper one, and of course, our court nominees
should be questioned about their judicial views and temperament. Nevertheless,
they should not be subjected to scurrilous personal attacks that needlessly
discourage qualified candidates from accepting a nomination.

Though this is a national issue, the core lesson is
eminently applicable to Michigan — that politicians must restrict themselves
from exceeding their role. But since politicians in fact have many incentives to
do just the opposite, our responsibility as citizens comes to the fore. We
must provide the incentive that restrains state and local politicians from
exceeding their defined functions by letting them know when they step out of
line.

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Nathan Russell is an intern the Mackinac Center for Public
Policy, a research and educational institute headquartered in Midland, Mich.
Permission to reprint in whole or in part is hereby granted, provided that the
author and the Center are properly cited.